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EXHIBIT 4.3(b)
FIRST AMENDMENT TO CREDIT AGREEMENT
BETWEEN U.S. BANCORP AG CREDIT, INC.
(F/K/A/FBS AG CREDIT, INC.),
AS AGENT FOR ITSELF AND CERTAIN OTHER LENDERS
AND
PREMIUM STANDARD FARMS, INC.
DATED AUGUST 27, 1997
This First Amendment to Credit Agreement (this "AMENDMENT") is made
this 13th day of May, 1998 among PREMIUM STANDARD FARMS, INC., a Delaware
corporation ("PREMIUM"), CGC ASSET ACQUISITION CORP., a Delaware corporation
("ASSET SUB"), the financial institutions listed on the signature pages hereof
(collectively the "LENDERS" and individually a "LENDER") and U.S. BANCORP AG
CREDIT, INC. (f/k/a FBS Ag Credit, Inc.), a Colorado corporation (the "AGENT"),
in its capacity as Agent for the Lenders under the Credit Agreement (hereinafter
defined).
RECITALS
A. Premium, PSF Holdings, L.L.C. ("PSF") and Continental Grain
Company, a Delaware corporation ("CGC") have entered into a Stock Purchase
Agreement dated December 23, 1997 (the "STOCK PURCHASE AGREEMENT"), pursuant to
which CGC has agreed to purchase and PSF has agreed to sell 51 % of the issued
and outstanding common stock of Premium.
B. In connection with the Stock Purchase Agreement, Premium has
formed Asset Sub, a wholly-owned subsidiary. Asset Sub, Premium and CGC have
entered into an Asset Purchase Agreement dated as of December 23, 1997 (the
"ASSET PURCHASE AGREEMENT"), pursuant to which Asset Sub has agreed to purchase
certain assets from CGC.
C. In connection with the closing of the transactions
contemplated by the Stock Purchase Agreement and the Asset Purchase Agreement,
CGC and Asset Sub will be entering into a Market Hog Contract Grower Agreement
(the "GROWER AGREEMENT") pursuant to which, among other things, CGC will provide
certain services to Asset Sub in connection with the breeding, growing and
caring for hogs owned by Asset Sub.
D. In connection with the Stock Purchase Agreement and the Asset
Purchase Agreement, CGC and PSF have entered into a Contribution Agreement dated
as of December 23, 1997 (the "CONTRIBUTION AGREEMENT"), pursuant to which CGC
will be forming PSF Group Holdings, Inc., a Delaware corporation ("NEWCO"), and
pursuant to which each of CGC and PSF will make a capital contribution to Newco
(directly or by way of merger) consisting of the stock each owns in Premium.
E. In connection with the closing of the transactions
contemplated by the Contribution Agreement, PSF and Newco will be entering into
an Agreement and Plan of Merger (the "MERGER AGREEMENT"), pursuant to which PSF
and Newco will merge, with Newco being the surviving corporation.
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F. The Credit Agreement dated as of August 27, 1997 among
Premium, the Agent and the Lenders (as the same may be amended, replaced,
restated and/or supplemented from time to time, the "CREDIT AGREEMENT")
currently prohibits Premium from consummating the transactions described in
paragraphs A through E above and certain other related transactions
(collectively the "CGC TRANSACTIONS"). In addition, Premium has requested that
the Agent and the Lenders agree to increase their Revolving Loan Commitments
from $60,000,000 in the aggregate to $90,000,000 in the aggregate. In connection
with the Asset Purchase Agreement and the Grower Agreement, Asset Sub will
require working capital financing. Accordingly, Premium and Asset Sub have
requested that the Agent and the, Lenders permit Asset Sub to become a borrower
under the Credit Agreement. Premium and Asset Sub have further requested certain
other changes in the terms of the Credit Agreement.
G. The Agent and the Lenders are willing to consent to the CGC
Transactions, to increase the Revolving Loan Commitments to $90,000,000, to
permit Asset Sub to become a borrower under the Credit Agreement, and to agree
to the other changes in the terms of the Credit Agreement, but only on the terms
and conditions herein contained.
NOW THEREFORE, in consideration of the foregoing and of the terms and
conditions contained in the Credit Agreement and this Amendment, and of any
loans or extensions of credit or other financial accommodations heretofore, now
or hereafter made to or for the benefit of Premium or Asset Sub by the Agent and
the Lenders, Premium, Asset Sub, the Agent and the Leaders agree as follows:
1. Representation and Warranty as to CGC Transactions and Consent
to CGC Transactions. The Borrower represents and warrants to the Agent and the
Lenders that the factual information taken as a whole in the materials furnished
by or on behalf of the Borrower to the Agent or any Lender for purposes of or in
connection with the CGC Transactions, does not contain any untrue statement of a
material fact or omit to state any material fact necessary to keep the
statements contained therein from being misleading as of the date of this
Agreement. The Borrower further represents and warrants to the Agent and the
Lenders that the financial projections and other financial information furnished
to the Agent or any Lender by the Borrower in connection with the CGC
Transactions were prepared in good faith on the basis of information and
assumptions that the Borrower believed to be reasonable as of the date of such
information, provided however that the Agent and the Lenders acknowledge that
financial projections are not a guaranty of future results. In reliance on the
foregoing representation and warranties, the Agent and the Lenders consent to
the CGC Transactions notwithstanding anything contained in the Credit Agreement
prohibiting the CGC Transactions. Without limiting the generality of the
foregoing, the Agent and the Lenders acknowledge that Premium and Asset Sub
intend to use up to $53,000,000 of Revolving Loans in connection with the
consummation of the CGC Transactions, and the, Agent and the Lenders consent to
the same.
2. Definitions. Capitalized terms used and not defined in this
Amendment shall have the meanings given to such terms in the Credit Agreement.
3. New Defined Terms. Section 1.1 of the Credit Agreement,
Defined Terms, is amended to add the following new definitions which shall read
in full as follows:
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"A REVOLVING LOAN" shall mean any Revolving Loan made pursuant
to Section 2.1(a)(i).
"A REVOLVING LOAN COMMITMENT" shall mean as to any Lender,
such Lender's Pro Rata Percentage of $60,000,000 as set forth opposite
such Lender's name under the heading "A Revolving Loan Commitments" on
Exhibit 1F, as such amount may be reduced or terminated from time to
time pursuant to Section 4.4 or 11.1, and "A REVOLVING LOAN
COMMITMENTS" shall mean collectively, the A Revolving Loan Commitments
for all the Lenders.
"A REVOLVING NOTE" shall mean any Revolving Note executed
pursuant to Section 2.1(h)(i).
"AMENDMENT #1 CLOSING DATE" shall mean May ___, 1998.
"ASSET SUB" shall mean CGC Asset Acquisition Corp., a Delaware
corporation.
"B REVOLVING LOAN" shall mean any Revolving Loan made pursuant
to Section 2.1(a)(ii).
"B REVOLVING LOAN COMMITMENT" shall means as to any Lender,
such Lender's Pro Rata Percentage of $30,000,000 as set forth opposite
such Lender's name under the heading "B Revolving Loan Commitments" on
Exhibit 1F, as such amount may be reduced or terminated from time to
time pursuant to Section 4.4 or 11.1, and "B REVOLVING LOAN
COMMITMENTS" shall mean collectively, the B Revolving Loan Commitments
for all Lenders.
"B REVOLVING NOTE" shall mean any Revolving Note executed
pursuant to Section 2.1(h)(ii).
"BORROWER" shall mean Premium Standard Farms, Inc., a Delaware
corporation and CGC Asset Acquisition Corp., a Delaware corporation, or
if the context so requires, either of them.
"CAPITAL SPENDING AMOUNT" shall mean for any period: (a) the
consolidated net fixed assets of the Borrower at the end of such
period, minus (b) the consolidated net fixed assets of the Borrower at
the beginning of such period, plus (c) consolidated depreciation during
such period.
"CGC" shall mean Continental Grain Company, a Delaware
corporation.
"CONSOLIDATED" and "CONSOLIDATING" when used with respect to
the Borrower's financial statements, shall mean that such financial
statements
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shall include the financial information of Premium and all of its
subsidiaries, including without limitation, Asset Sub.
"NEWCO" shall mean PSF Group Holdings, Inc., a Delaware
corporation.
"REVOLVING LOANS" shall mean the A Revolving Loans and/or the
B Revolving Loans.
"REVOLVING NOTES" shall mean the A Revolving Notes and/or the
B Revolving Notes.
4. Replaced Defined Terms. Section 1.1 of the Credit Agreement,
Defined Terms, is also amended by eliminating the definitions of "Agent's
Letter", "EBITDA", "First Bank", "Fiscal Year", "Guarantor", "Guaranty",
"Property", "Revolving Loan Commitment", "Unallocated Cash Flow", "Unit" and
"Working Capital", and replacing them in full with the following definitions.
"AGENT'S LETTER" shall mean the letter agreements entered into
from time to time between the Agent and the Borrower and governing the
Agents fees.
"EBITDA" shall mean: (a) the net combined income of the
Borrower before provision for income taxes, interest expense (including
without limitation, implicit interest expense on capitalized leases),
depreciation (other than depreciation attributable to breeding stock,
amortization and other noncash expenses or charges, excluding (to the
extent included): (i) nonoperating gains (including without limitation,
extraordinary or nonrecurring pins, gains from discontinuance of
operations and gains arising from the sale of assets other than
Inventory) during the applicable period; and (ii) similar nonoperating
losses during such period, plus (b) up to $22,000,000 in nonrecurring
expenses incurred or accrued on or before the closing of the CGC
transaction consisting of brokerage fees and management options payable
in connection with the CGC Transactions.
"FIRST BANK" shall mean U.S. Bank National Association, a
national banking association with its principal place of business in
Minneapolis, Minnesota and an Affiliate of the Agent, and its
successors and assigns.
"FISCAL YEAR" means the fiscal year of the Borrower, which
shall be the twelve month period ending on or about March 31 each year.
"GUARANTOR" shall mean Newco, in its capacity as guarantor of
the Liabilities, and any other Person who may hereafter execute and
deliver in favor of the Agent and the Lenders, a guarantee of the
Liabilities.
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"GUARANTY" shall mean that certain Guaranty by Newco dated as
of the Amendment #1 Closing Date, guaranteeing the payment and
performance of the Liabilities.
"PROPERTY" shall mean: (a) the land, the improvements, the
fixtures and the Equipment of Premium located in Mercer, Putnam and
Sullivan Counties, Missouri and in Dallam and Hartley Counties, Texas
as legally described on Exhibit 1E to the Credit Agreement provided
however, that the Property specifically includes Premium's processing
facility located in Milan, Missouri; and (b) the improvements, the
fixtures and the Equipment of Asset Sub located in Gentry, Grundy,
Harrison and Worth Counties, Missouri and acquired from CGC pursuant to
the Asset Purchase Agreement, including without limitation, Asset Sub's
feed mill and office located in Davies County.
"REVOLVING LOAN COMMITMENT" shall mean, as to any Lender, such
Lender's A Revolving Loan Commitment and/or such Lender's B Revolving
Loan Commitment, and "REVOLVING LOAN COMMITMENT" shall mean
collectively, the Revolving Loan Commitments for all the Lenders.
"UNALLOCATED CASH FLOW" shall mean for any period of
determination (a) EBITDA during such period, minus (b) the amount of
cash taxes paid during such period, minus (c) the amount of cash
dividends paid during such period, minus (d) the amount of cash
interest paid during such period, minus (e) the Capital Spending Amount
during such period (provided however, that Asset Sub's purchase of
assets from CGC for $75,000,000 during the Borrower's 1998 Fiscal Year,
shall not be included in determining the Capital Spending Amount for
any period in which such purchase occurs, and provided further, that
capital expenditures consisting of the purchase of breeding stock shall
not be included in determining the Capital Spending Amount for any
period in which such purchase occurs), minus (f) the cash portion of
the purchase price paid during such period for any acquisition
permitted under Section 10.2.
"UNIT" shall mean a combination of hog production facilities
consisting of breeding, gestation and farrowing buildings sufficient to
house 9,900 to 10,800 gilts and/or sows, together with such nursery and
finishing buildings as are necessary to support the offspring of said
9,900 to 10,800 gilts and/or sows.
"WORKING CAPITAL" shall mean as of any particular date, the
amount of the Borrower's combined current assets (including the net
book value of breeding stock), adjusted by deducting prepaid expenses
(excluding deferred income taxes), less the Borrower's combined current
liabilities (including without limitation, the aggregate amount of
Revolving Loans outstanding), treating all amounts currently owing to
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Affiliates (except amounts owing to Affiliates eliminated by
combination) as current liabilities and giving no value as assets to
any amounts currently owing from Affiliates.
5. Deleted Defined Terms. Section 1.1 of the Credit Agreement,
Defined Terms, is amended to delete the defined term "Fixed Charge Deficiency
Amount" and its definition.
6. Section 1.2 of the Credit Agreement, is amended to add the
following capitalized terms which are defined in the Preambles to this
Amendment: "Asset Purchase Agreement", "Contribution Agreement", "CGC
Transactions", "Grower Agreement", "Merger Agreement" and "Stock Purchase
Agreement".
7. Revolving Loans. Section 2.1(a) of the Credit Agreement is
amended to read in full as follows:
(a)(i) Subject to the terms and conditions and relying upon
the representations and warranties herein set forth, each Lender
severally agrees to make revolving credit loans (each an "A REVOLVING
LOAN" and more than one A Revolving Loan, the "A REVOLVING LOANS") to
the Borrower on any one or more Business Days prior to the Revolving
Maturity Date, up to an aggregate principal amount of A Revolving Loans
not exceeding for each Lender, the lesser of such Lender's Pro Rata
Percentage of the Available Amount on such Business Day or the amount
of such Lender's A Revolving Loan Commitment. Within such limits and
during such period and subject to the terms and conditions of this
Agreement, the Borrower may borrow, repay and reborrow A Revolving
Loans.
(ii) If the amount of A Revolving Loans outstanding equals the
aggregate amount of the A Revolving Loan Commitments at any time,
subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender severally
agrees to make revolving credit loans (each a "B REVOLVING LOAN" and
more than one B Revolving Loan, the "B REVOLVING LOANS") to the
Borrower on any one or more Business Days prior to the Revolving
Maturity Date, up to an aggregate principal amount of B Revolving Loans
not exceeding for each Lender, the lesser of such Lender's Pro Rata
Percentage of the Available Amount on such Business Day or the amount
of such Lender's B Revolving Loan Commitment. Within such limits and
during such period and subject to the terms and conditions of this
Agreement, the Borrower may borrow, repay and reborrow B Revolving
Loans.
8. Restated Revolving Notes. Section 2.1(h) of the Credit
Agreement is amended to read in full as follows:
(h)(i) The Borrower shall execute and deliver to the Agent for
each Lender to evidence the A Revolving Loans made by each Lender
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under such Lender's A Revolving Loan Commitment, a restated revolving
credit note (each such note, an "A REVOLVING NOTE" and collectively the
"A REVOLVING NOTES"), which shall be (i) dated the date of the
Amendment #1 Closing Date; (ii) in the principal amount of such
Lender's maximum A Revolving Loan Commitment; and (iii) in
substantially the form attached as Exhibit 2C, appropriately completed.
Each Lender shall post (iv) the date and principal amount of each A
Revolving Loan made under such A Revolving Note; (v) the rate of
interest each such A Revolving Loan will bear; and (vi) each payment of
principal thereon; provided however, that any failure of such Lender to
so post shall not affect the Borrower's obligations thereunder.
(ii) The Borrower shall execute and deliver to the Agent for
each Lender to evidence the B Revolving Loans made by each Lender under
such Lender's B Revolving Loan Commitment, a revolving credit note
(each such note, a "B REVOLVING NOTE" and collectively the "B REVOLVING
NOTES"), which shall be (i) dated the date of the Amendment #1 Closing
Date; (ii) in the principal amount of such Lender's maximum B Revolving
Loan Commitment; and (iii) in substantially the form attached as
Exhibit 2D, appropriately completed. Each Lender shall post (iv) the
date and principal amount of each B Revolving Loan made under such B
Revolving Note; (v) the rate of interest each such B Revolving Loan
will bear; and (vi) each payment of principal thereon; provided
however, that any failure of such Lender to so post shall not affect
the Borrower's obligations thereunder.
9. Conditional Release of Certain Collateral. Section 4.5 of the
Credit Agreement is deleted in its entirety.
10. Commitment Fee with Respect to Revolving Loan Commitments.
Section 6.1 of the Agreement is amended to read in full as follows:
Premium and Asset Sub jointly and severally agree to pay to
the Agent for distribution to the Lenders (based on their respective
Revolving Loan Commitments) an annual commitment fee from the Closing
Date to the first Anniversary Date, in the annual amount of Seventy
Five Thousand Dollars ($75,000), which amount is the total fee for
Premium and Asset Sub together and not for Premium and Asset Sub
individually. Premium and Asset Sub further jointly and severally agree
to pay to the Agent for distribution to the Lenders (based on their
respective Revolving Loan Commitments) an additional commitment fee
from the Amendment #1 Closing Date to the first Anniversary Date, in
the amount of Thirty Seven Thousand Five Hundred Dollars ($37,500),
which amount is the total fee for Premium and Asset Sub together and
not for Premium and Asset Sub individually. Beginning with the first
Anniversary Date, the annual commitment fee shall be increased to One
Hundred Twelve Thousand Five Hundred Dollars ($112,500), which amount
is the total fee
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for Premium and Asset Sub together and not for Premium and Asset Sub
individually. The initial annual commitment fee for the Revolving Loan
Commitments shall be due and payable in advance on the date of this
Agreement, in the amount of Seventy Five Thousand Dollars ($75,000).
The additional commitment fee for the Revolving Loan Commitments shall
be due and payable in advance on the Amendment #1 Closing Date, in the
amount of Thirty Seven Thousand Five Hundred Dollars ($37,500).
Thereafter annual commitment fees for the Revolving Loan Commitments
shall be due and payable in advance on each Anniversary Date prior to
the Revolving Maturity Date in the amount of One Hundred Twelve
Thousand Five Hundred Dollars ($112,500), and on the Revolving Maturity
Date, unless the Borrower has fully terminated the Commitments in
accordance with Section 4.4 and has fully paid and satisfied all of the
Liabilities relating to the Revolving Loans (including without
limitation, all of the LC Obligations), provided however, that the
annual commitment fee for the period beginning on the Anniversary Date
next preceding the Revolving Maturity Date shall be pro-rated if
applicable. Each commitment fee shall be fully earned on the date it
becomes payable and, at the option of the Agent, shall be paid by
direct debit against the Borrower's checking account.
11. Other Names. Section 7.7 of the Agreement is amended to read
in full as follows:
Premium has not, during the preceding five years, been known
by or used any other name, except as disclosed on Part 7 of Exhibit 7
to the Credit Agreement. Asset Sub has not, during the preceding five
years, been known by or used any other name.
12. Affiliates. Section 7.8 of the Agreement is amended to read in
full as follows:
The Borrower has no Affiliates, other than those Persons
disclosed on Exhibit 7A, and the legal relationships of the Borrower to
each such Affiliate are accurately and completely described thereon.
13. Financial Covenants and Ratios. Section 9.6 of the Agreement
is amended to read in full as follows:
The Borrower shall maintain:
(a) a consolidated Tangible Net Worth of not less than
$125,000,000 at all times;
(b) a consolidated ratio of total liabilities to Tangible
Net Worth of not more than 1.75 to 1.0 at all times;
(c) consolidated Working Capital of not less than
$30,000,000 at all times; and
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(d) a consolidated Fixed Charge Coverage Ratio
(calculated on a rolling twelve month basis) as of the end of each
fiscal month of the Borrower of not less 1.0 to 1.0 (the "required
level") at all times, provided however, that the Borrower shall be
permitted to have a Fixed Charge Coverage Ratio (so calculated) at the
end of any fiscal month between 0.80 to 1.0 and the required level as
long as the Fixed Charge Coverage Ratio (so calculated) returns to not
less than the required level by the end of the twelfth fiscal month
following the fiscal month end on which the Fixed Charge Coverage Ratio
(so calculated) first went below the required level, and as long as the
Fixed Charge Coverage Ratio (so calculated) does not fall below the
required level after the expiration of twelve months following the
fiscal month end on which the Fixed Charge Coverage Ratio (so
calculated) first went below the required level.
14. Article 9 of the Agreement is amended to add a new Section
9.17, which reads in full as follows:
9.17 Ownership of Asset Sub.
Asset Sub shall at all times be a wholly owned subsidiary of
Premium except as allowed in Section 10.2(c).
15. Consolidations, Mergers or Acquisitions. Section 10.2 of the
Agreement is amended to read in full as follows:
Neither Premium nor Asset Sub shall recapitalize or
consolidate with, merge with, or otherwise acquire all or substantially
all of the assets or properties of any other Person, except that: (a)
Premium may enter into any transaction to raise equity capital which
transaction does not result in a change of control of Premium, as the
word "control" is used in the definition of Affiliate, (b) Premium may
merge with any Affiliate which is a wholly-owned subsidiary of Premium,
(c) Premium and Asset Sub may merge with one another and Asset Sub may
be dissolved in connection with any such merger, and (d) Premium or
Asset Sub may enter into acquisition transactions not exceeding
$10,000,000 in aggregate purchase price, provided however, that all of
such purchase price is paid in cash or debt permitted under Section
10.4, and provided further, that Premium demonstrates to the reasonable
satisfaction of the Agent that each such acquisition transaction will
not result in a violation of Section 9.6(d).
16. Guaranties. Section 10.5 of the Agreement is amended to permit
Premium to guarantee Asset Sub's liabilities and obligations to CGC under or
pursuant to the Grower Agreement.
17. Capital Investment Limitations. Section 10.7 of the Agreement
is amended to read in full as follows:
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The Borrower shall not purchase, invest in or otherwise
acquire additional real estate, equipment or other fixed assets (other
than the replacement of breeding animals in the ordinary course of
business, Asset Sub's purchase of assets from CGC for $75,000,000
during the Borrower's 1999 Fiscal Year and the replacement of obsolete
and worn out Equipment in the ordinary course of business) which would
cause its Capital Spending Amount in any one Fiscal Year to exceed the
lesser of: (a) the maximum amount that would maintain the Borrower's
consolidated Fixed Charge Coverage Ratio for such Fiscal Year at the
level required in Section 9.6(d), (b) $43,000,000, or (c) the following
specific limits: (i) $31,000,000 during the Borrower's 1997 Fiscal
Year, (ii) $30,000,000 during the Borrower's 1999 Fiscal Year, plus the
amount (if any) by which the Borrower's capital expenditures during its
1997 Fiscal Year were less than the specific limit for that Fiscal
Year, (iii) $35,000,000 during the Borrower's 2000 Fiscal Year, plus
the amounts (if any) by which the Borrower's capital expenditures
during its 1997 and 1999 Fiscal Years were less than the specific
limits for those Fiscal Years, (iv) $33,000,000 during the Borrower's
2001 Fiscal Year, plus the amounts (if any) by which the Borrower's
capital expenditures during its 1997, 1999 and 2000 Fiscal Years were
less than the specific limits for those Fiscal Years, and (v)
$29,000,000 during the Borrower's 2002 Fiscal Year, plus the amounts
(if any) by which the Borrower's capital expenditures during its 1997,
1999, 2000 and 2001 Fiscal Years were less than the specific limits for
those Fiscal Years. Notwithstanding the foregoing specific limits, the
Borrower may expend up to an additional $3,000,000 per Fiscal Year in
capital expenditures, as long as such additional capital expenditures
do not result in the Borrower's consolidated Fixed Charge Coverage
Ratio for such Fiscal Year being less than the level required in
Section 9.6(d), and as long as the capital expenditures in any one
Fiscal Year do not exceed $43,000,000.
18. Loans to Affiliates. Section 10.9 of the Agreement is amended
to add the following sentence at the end thereof:
Nothing in this Section 10.9 shall limit the amount of loans from
Premium to Asset Sub, or from Asset Sub to Premium, which may be
outstanding at any one time.
19. Distributions, Prepayments of Debt. Section 10.10 of the
Agreement is amended to read in full as follows:
Premium shall not directly or indirectly: (a) redeem any of
Premium's shares of capital stock; or (b) declare any dividends or
distributions in respect of equity in any year, provided however, that
Premium may make dividends in any one Fiscal Year of not more than
$500,000 in the aggregate.
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20. Issuance of Equity; Amendment of Organization Documents.
Section 10.11 of the Agreement is amended to read in full as follows:
Premium shall not issue or distribute any of Premium's capital
stock or membership interests for consideration or otherwise, except
that Premium may enter into any transaction to raise equity capital as
long as such transaction does not result in a change in control of
Premium, as the word "control" is used in the definition of Affiliate.
Asset Sub shall not issue or distribute any of Asset Sub's capital
stock or membership interests for consideration or otherwise. Neither
Premium nor Asset Sub shall amend its articles or certificate of
incorporation or organization or bylaws, except upon prior written
notice to the Agent, provided however, that any such amendment shall
not result in a change of control of Premium or Asset Sub, as the case
may be, as the word "control" is used in the definition of Affiliate.
The foregoing prohibitions shall not apply to any of the foregoing
actions which is necessary to accomplish any transaction that is
otherwise permitted under Section 10.2 as long as such transaction does
not result in a change in control of Premium, as the word "control" is
used in the definition of Affiliate.
21. Payment of Subordinated Debt. Section 10.14 of the Agreement
is amended to read in full as follows:
The Borrower shall not directly or indirectly, pay, prepay,
redeem or purchase, or deposit funds or property for the payment,
prepayment, redemption or purchase of the indebtedness of Premium, of
Asset Sub or of both, which is subordinated to the payment of any
portion of the Liabilities, except that the Borrower may prepay
subordinated debt in whole or in part at any time, as long as: (a)
there is no Default or Matured Default at the time of such prepayment,
(b) no Default or Matured Default would occur as a result of such
prepayment, and (c) the Borrower has delivered to the Agent and the
Lenders not less than five (5) Business Days before the date of any
such proposed prepayment, pro forma financial statements demonstrating
to the satisfaction of the Required Lenders, that the Borrower will be
in compliance with the requirements of Section 9.6 immediately
following any such prepayment and at the end of the then current fiscal
quarter.
22. Section 13.18(a) of the Credit Agreement is amended to read in
full as follows:
(a) All notices and other communications provided for
herein shall be in writing (including telex, facsimile, or cable
communication) and shall be mailed, telexed, cabled or delivered
addressed as follows:
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(i) If to the Agent at:
U.S. Bancorp Ag Credit, Inc.
950 Seventeenth Street, Suite 350
Denver, Colorado 80202
Attn: James A. Bosco, President
Facsimile: (303) 585-4732
with a copy to:
Ellen Beverley McNamara
Dorsey & Whitney
370 Seventeenth Street, Suite 4400
Denver, Colorado 80202
(ii) If to the Borrower at:
Premium Standard Farms, Inc.
CGC Asset Acquisition, Inc.
423 West 8th Street, Suite 200
Kansas City, Missouri 64105
Attn: Chief Financial Officer
with a copy to:
Sonnenschein Nath & Rosenthal
4520 Main Street, Suite 1100
Kansas City, Missouri 64111
Attn: James A. Heeter, Esq.
(iii) If to any of the Lenders other than the Agent, at the
address for such Lender set forth on the applicable
signature page of this Agreement;
and, as to each party hereto, at such other address as shall be
designated by such party in a written notice to the other parties
hereto. All such notices and communications shall, when mailed,
telecopied, telexed, transmitted, or cabled, become effective when
deposited in the mail, confirmed by telex answerback, transmitted by
telecopier, or delivered to the cable company, respectively except that
notices and communications to the Agent shall not be effective until
actually received by the Agent.
23. Exhibit 1D to the Credit Agreement, the Lenders' Commitments,
is replaced with Exhibit 1F to this Amendment.
24. Exhibit 2A to the Credit Agreement, the Form of Revolving
Notes, is replaced with Exhibit 2C to this Agreement.
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25. Exhibit 2B to the Credit Agreement, the Form of Term Notes, is
replaced with Exhibit 2E to this Amendment.
26. Part 8 of Exhibit 7 to the Credit Agreement, Borrower's
Affiliates, is replaced with Exhibit 7A to this Amendment.
27. Part 9 of Exhibit 7 to the Credit Agreement, Environmental
Matters, is replaced with Exhibit 7B to this Amendment.
28. Exhibit 9A to the Credit Agreement, the Form of Compliance
Certificate, is replaced with Exhibit 9B to this Amendment.
29. Assumption of Indebtedness by Asset Sub, Obligations and
Covenants. Asset Sub hereby assumes all indebtedness of Premium to the Agent and
the Lenders pursuant to, and as a co-borrower joins in the Credit Agreement.
Asset Sub also agrees to pay all indebtedness to the Agent and the Lenders under
all promissory notes issued pursuant to the Credit Agreement, and agrees that
its liability to the Agent and the Lenders with respect to all indebtedness
thereunder shall be primary as well as joint and several with Premium, all as if
Asset Sub was an original obligor thereof. Asset Sub also agrees to abide by and
observe all of the covenants, terms and conditions to be observed and performed
by Borrower as contained in the Credit Agreement, and the agreements,
instruments and/or documents related thereto. Asset Sub shall be added as a
party to the Credit Agreement, and as a party to all of the agreements,
instruments and/or documents related thereto, and any and all references to
Borrower set forth in the Credit Agreement, or in any agreement, instrument or
document related thereto, including without limitation this Amendment, shall
hereafter include and pertain in all respects to Asset Sub. Premium acknowledges
and consents to the foregoing, and agrees that its liability to the Agent and
the Lenders with respect to all indebtedness under the Credit Agreement shall be
primary as well as joint and several with Asset Sub.
30. Representations and Warranties. To induce the Agent and the
Lenders to enter into this Amendment, the Borrower represents and warrants to
the Agent and the Lenders that except as described in this Amendment, each and
every representation and warranty set forth in the Credit Agreement is true and
correct as of the date hereof, and shall be deemed remade by the Borrower as of
the date hereof.
31. Conditions to Advances; Documentation. The effectiveness of
this Amendment shall be conditioned upon the execution and/or delivery of the
agreements, instruments and/or documents listed on Exhibit 8C attached hereto.
32. Incorporation of Credit Agreement. The parties agree that this
Amendment shall be an integral part of the Credit Agreement, that all of the
terms set forth therein are incorporated in this Amendment by reference, and
that all terms of this Amendment are incorporated therein as of the date of this
Amendment. All of the terms and conditions of the Credit Agreement which are not
modified in this Amendment shall remain in full force and effect. To the extent
the terms of this Amendment conflict with the terms of the Credit Agreement, the
terms of this Amendment shall control.
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33. Return of Notes. After the restated Notes required to be
delivered pursuant to this Amendment have been delivered to the Agent and the
Lenders, each Lender shall return to the Borrower, the Notes replaced by the
restated Notes required to be delivered pursuant to this Agreement. Each Lender
(including the Agent in its capacity as a Lender) agrees to return such replaced
Notes to the Borrower as promptly as practicable after receiving the Notes
required to be delivered pursuant to this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
PREMIUM STANDARD FARMS, INC.,
A DELAWARE CORPORATION
BY: /S/ WILLIAM PATTERSON
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ITS:
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CGC ASSET ACQUISITION CORP.
A DELAWARE CORPORATION
BY: /S/ WILLIAM PATTERSON
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ITS:
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U.S. BANCORP AG CREDIT, INC. (F/K/A FBS
AG CREDIT, INC.), AS AGENT AND AS A LENDER
950 17TH STREET, SUITE 350
DENVER, COLORADO 80202
BY: /S/ RONAL E. VAN STEYN
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ITS: V.P.
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FARM CREDIT SERVICES OF WESTERN MISSOURI,
PCA
BY: /S/ TERRY EIDSON
---------------------------------------
ITS: SENIOR VICE PRESIDENT
---------------------------------------
MERCANTILE BANK NATIONAL ASSOCIATION
BY: /S/ WAYNE C. LEWIS
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ITS: VICE PRESIDENT
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HARRIS TRUST AND SAVINGS BANK
BY: /S/ BRIAN J. MOELLER
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ITS:
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CREDIT AGRICOLE INDOSUEZ
BY: /S/ W. LEROY STARZ AND DAVID BOUHL
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ITS: FIRST VICE PRESIDENT AND HEAD OF CORP.
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BANKING, CHICAGO
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HELLER FINANCIAL, INC.
BY: /S/
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ITS:
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